Brittany Battle on the Negative Impacts of Probation and Other Types of Community Supervision

Judith Siers-Poisson [00:00:05] Hello and thanks for joining us for the Poverty Research and Policy podcast from the Institute for Research on Poverty at the University of Wisconsin, Madison. I’m Judith Siers-Poisson. For this episode, we’re going to be talking with Dr. Brittany Battle. She’s an assistant professor of sociology at Wake Forest University and is also the co-founder of Triad Abolition Project, a grassroots organization based in Winston-Salem, North Carolina. She’s also an IRP Emerging Poverty Scholar, and her project during that fellowship is to examine the experiences of low income people and communities in diverse judicial settings and forms of community supervision and confinement. Brittany, thanks for joining us today.

Brittany Battle [00:00:46] Thanks so much for having me. I’m so excited to talk some about this project.

Siers-Poisson [00:00:50] So people who are found guilty of crimes may serve a sentence in a jail or prison, but there are other types of confinement that take place outside of those places as well, either in addition to or maybe instead of incarceration. How common are those alternative or additional community based sentences?

Battle [00:01:09] They’re actually very common, and they’re actually much more common than incarceration. Currently, there are about 3.6 million adults under some form of community supervision. That can include probation, which is the vast majority. There are about 3 million people on probation now and then the remainder are on parole. So folks either are coming out of incarceration, or as just a form of punishment in and of itself. Lots of folks are experiencing contact with the criminal legal system through these types of supervision.

Siers-Poisson [00:01:43] So let’s focus on that, what sounds like very common type of supervision, probation. What exactly does it mean to be on probation?

Battle [00:01:53] So lots of folks think that being outside of incarceration allows people to have more freedom and more autonomy. But that’s not what is actually happening with probation. You have either supervised or unsupervised probation, and either form, there’s going to be a lot of regulations with supervised probation. Folks are required to check in with their probation officers regularly. Sometimes probation officers can show up at people’s houses multiple times in a week, but with unsupervised, even though they don’t have those regular check ins, they’re still required to do a lot of things. Those things can include remaining free of substance use, including alcohol. Right. So not just the illegal drugs, people can be required to not be in certain locations, not be around particular people. Often those are people who were involved in criminal charges that the folks faced. They can be required to remain in their homes. That’s called electronic monitoring. A lot of folks know those things commonly as ankle bracelets or ankle monitors. Now, electronic monitoring is actually being done by cell phone applications. So folks have to have GPS tracking on their cell phone. That sends the government essentially notification for any time they leave their house. And then the one of the big portions is they’re required to pay a lot of money. Right. There are a lot of legal financial obligations associated with probation, including restitution for the underlying charge. But also folks are required to pay for their probation supervision in a lot of cases. And folks are really struggling with those types of burdens, those types of restrictions. And one important thing to say quickly about the restrictions are that they are totally at the discretion in most places of the judge. So we see the same types of racialized and class and gendered discrimination coming out in the ways that restrictions are placed on people who are on probation. Another thing that’s important to point out when we talk about judges’ discretion are the ways that these interactions are happening in the courtroom. And so for this project, that’s one of the major things that we’re interested in studying are these interactions. And we’re finding that there’s a lot of stigma and shame and performance that’s required from the judges. So, for instance, there’s one judge that we observed regularly when an individual was before him for a probation violation. He makes them define the word “grace.” And so he says, “Do you know what ‘grace’ means?” And the person will say, “Yes.” And he says, “You tell me what it means.” And he makes them stand before the entire courtroom. Gives some definition. People are usually stumbling over their words because who can give a definition of grace off the top of their head? And then whatever the individual says, he responds, “Yes, that’s correct. And I’m going to show you some grace here today, and you make sure..” So on and so forth. Right. And just gives them this total like read down, very paternalistic, very embarrassing and I’m mortified for the people. There’s lots of snickering from the other people who are in the gallery, except those who know that they’re going to have to go before him and also define grace. So we see like these similar things that other folks have talked about in the criminal legal system broadly, like in Issa Kohler-Hausmann’s “Misdemeanorland,” and in Nicole Gonzalez Van Cleve’s “Crook County,” where they’re talking about these interactions. And that’s not a good way for people to have successful outcomes, right, when they’re experiencing such shame, such embarrassment, such humiliation. It can make folks just be done with the entire system, not want to come back to their next court date. There are so many collateral consequences that those types of interactions have, and that’s a major part of what’s happening in the system as well.

Siers-Poisson [00:05:39] That description of probation as it stands right now is really helpful. What have been the trends over time? Is it used more than it might have been in the past? Are the restrictions more onerous than maybe they were in in past decades?

Battle [00:05:54] So we actually saw that the folks who are on community supervision fall under 4 million in 2020. And that was the first time that number had been under 4 million since 1997. So we do see some declines in the numbers of people who are on probation or other forms of community supervision that can be attributed to a couple of things. One of those reasons that folks in legal fields are talking about is that it’s a result of COVID. So with COVID, the criminal legal system shut down for many months, and so many folks who are facing charges just did not have their cases adjudicated. So there were not the same numbers of folks entering community supervision or incarceration as we saw in previous times. Right. So we have to keep an eye and see what happens as we are not post COVID, right, but past that initial wave. But certainly the use of community supervision is still a super-prominent piece of criminal legal system contact even now.

Siers-Poisson [00:07:03] I’m sure there’s a lot of variation, but in general, who is or is not eligible for probation?

Battle [00:07:10] So most of the time folks who are on probation have been charged and convicted of what they’re called “less serious” crimes. Right. Crimes are socially constructed. As I make sure I let my students know in my criminology courses. So there’s air quotes around less serious crimes. Right. But about 40% of those who are on probation are there for a misdemeanor. And then it’s important to keep in mind also that probation can be tacked on after an active jail or prison sentence. So there’s a bunch of different ways people can end up on probation, but it’s often associated with what the criminal legal system defines as a “less serious” crime.

Siers-Poisson [00:07:52] And you mentioned that it’s a judge who decides if they’re going to be on probation and what that probation means. Does the person who’s being charged or put on probation have any say in that? What if they don’t think probation is the best way for them to to serve their time?

Battle [00:08:10] Yeah, so judges are definitely super important. And then I also make sure that we note that prosecutors are super important in this process. Folks in legal studies argue that prosecutors have the most discretion, are the most important actors in the criminal legal system, because they make decisions about what charges individuals face. And the charges that folks face have lots of repercussions for whether or not they take a plea bargain, whether or not they end up with active jail sentences or not. In most instances, folks who are facing incarceration, I would venture to guess, would not want to be incarcerated if there was another option, Right. So they could be on probation rather than be in a detention center, in a jail or prison that we know have deadly consequences of being incarcerated that way, that those are the decisions that would be made. But that that doesn’t mean that folks are having a better experience on probation, so to speak.

Siers-Poisson [00:09:09] You mentioned earlier and I’d like to go into it a little more, that in general, the criminal legal system in the U.S. as a whole is known to affect individuals and communities of color disproportionately. And you said that’s also true about probation. And I believe also women are more affected by probation. Can you dig into that a little more for us?

Battle [00:09:28] Yeah. So the same racial disparities that we see in the criminal legal system, broadly speaking, are definitely present in who is on probation. So about 30% of those who are sentenced to probation are Black disproportionately. Also, numbers of Latino folks, Native American folks, and then also women, as we see in the criminal legal system, broadly speaking. Also, women are quickly making up a larger percentage of those who are sentenced to probation. Right now, about 25% of those people who are on probation are women. In many cases, it’s sometimes viewed as a kinder, gentler or more humane form of punishment, particularly for families, often for mothers. There’s been work done in the immigration system that looks at alternative to detention programs for asylum seekers. And in that system, these alternatives to detention programs that keep people home but keep them super surveilled, like on probation in the criminal legal system, they’re talked about as more humane, more in service of motherhood. Right. But we see that people are actually having the same harsh experiences than they do when they are navigating the criminal legal system more broadly.

Siers-Poisson [00:10:46] So you did talk about how there are costs associated with being on probation. And I think for someone who may not have direct experience with the criminal legal system, it might be hard to imagine what types of costs are and how onerous some of those are. Can you give us some really concrete examples of what people are paying for to be on probation?

Battle [00:11:09] So the starting point is to highlight that folks who are represented by public defenders often have to pay for the public defender. So there’s this misconception that public defenders are free. But often at sentencing, what we see are judges ordering the folks who are being sentenced to pay the hourly cost for their public defenders. So that can be a few hundred dollars right to start. And then often folks are required to pay restitution. So, for instance, if this was a case of shoplifting, they are ordered to pay restitution to the business that they were accused of shoplifting from. They may also have to pay for the devices, the technology, that’s being used. So they could have a monthly expense for their ankle monitor or a monthly expense for the breathalyzer that’s now on their car. Then they also have to pay for programing. So if they’re ordered into a substance abuse treatment program, if they’re ordered into anger management, any types of programing always come along with costs. Right. And then they have to pay court costs, which are just the costs that folks are charged because they’re navigating the criminal legal system. So people can have $300 or $400 obligations per month just in these fines and fees associated with probation. And it’s important to keep in mind that we know that about 66% of people who are on probation earn less than $20,000 a year. And about 40% or excuse me, nearly 40%, 38% make less than $10,000 a year. So we know, even for those of us in the most financially stable positions, a $400 obligation would be a lot. Right. But for folks who are really in precarious financial positions, it can just be unbearable. Right? It’s just impossible to meet.

Siers-Poisson [00:13:03] Well, and that makes me think of the people around the person. Those are individual fines, fees, costs. But they are probably not living in a vacuum. They are probably part of some kind of family or community network. And it seems like a lot of those burdens and a lot of that stress would actually fall on the people around them.

Battle [00:13:25] Of course. And that’s why we call our project Families Under Surveillance, because it’s not just an individual who is experiencing the repercussions of these types of community confinement programs. It’s the entire family, right? So people have to pull their kids from extracurricular activities. They have to go without groceries, right? They have to go without getting their car fixed or paying insurance. And some are even becoming unhoused. Right, as a result of the fees that are associated with probation.

Siers-Poisson [00:13:56] So it seems like probation in particular is presented as the last stage of, quote unquote, paying for your crime after incarceration or as a way to avoid incarceration. But is it really? Or do people often end up being incarcerated or sent back because they’re unable to fulfill the probation requirements?

Battle [00:14:15] Yeah, I mean, a huge number of people are incarcerated as we speak as a result of a violation of their probation or parole. In jails, statistics show us about one in five people are currently in jail for a violation. In some places, this raises up to one third of the population. So that’s local jails. And then when we look at state prisons, one in four people are incarcerated as a result of a violation of their supervision. So it’s a huge number of people. Prison Policy Initiative reports in 2021 that at least 128,000 people were incarcerated for technical violations. So it’s important to keep in mind that these are not actually criminal offenses. These are not things that would be otherwise chargeable. They only result in criminal legal system context because the people are on probation. And so probation is actually bringing many more people into incarceration than might otherwise be in that position.

Siers-Poisson [00:15:24] So what happens when someone is picked up on a probation violation? What is their trajectory then?

Battle [00:15:31] Many different things can happen. And again, it’s largely up to the district attorneys and the judges about what they’re asking for and what their sentencing folks do. So a couple of things can happen. One thing, a person can have their active sentence reinstated. So if they were originally sentenced to six months probation with a six month jail sentence, but it was suspended, meaning that the person was required to successfully complete their probation or otherwise they would have to do the six months in jail. So sometimes people when if they’re not successful on probation, then they would have that active sentence instituted. Or other times when people are getting involved in some new criminal offense. Sometimes to meet the financial burdens of probation, right, then they can have an entire new charge to navigate. And who knows what the sentences can be for those new charges.

Siers-Poisson [00:16:28] So it seems like the system is not working, at least in the way that it’s said it’s supposed to be working. Who is benefiting from the system as it is now?

Battle [00:16:39] Well, one thing I like to say as a grassroots organizer who works around carceral logics and carcerality is, the system is, in fact, working. The system is actually designed to bring people into incarceration. It’s designed to lock people up. And it has been since its origins. So it is actually doing what it’s supposed to do. But we like to paint a narrative that we don’t actually want to incarcerate people, Right? But the system cannot sustain itself if people are not incarcerated. So there’s lots of actors that benefit from the use of probation and expanded incarceration. Currently, in ten states, private companies are allowed to manage their probation. So when we see Joe Biden signing legislation against the use of private prisons at the federal level right now, there is a new source of revenue income for some of those private corporations that were making a lot of money with private prisons. We also know that, you know, unfortunately, our politicians can make money as well, Right, because they’re being lobbied by these corporations who do things like make the technology for the GPS monitoring. Right. And do all the things that are associated with what are often viewed as criminal legal system reforms. Right. As beneficial. But I always tell my students to follow the money. Right? And so that’s a good way to figure out what’s actually happening in a system is to look underneath about who’s lobbying for what. And then it’s a surefire way to tell that these are folks that are making money off the system.

Siers-Poisson [00:18:17] And as we said before, there are also family members, close community members who are affected as well. And I’m sure that there is money to be made off of them. For instance, say, payday loans because they are helping their loved one pay for these probation costs and fees.

Battle [00:18:33] Exactly. And so just reproducing the same types of repercussions and consequences that we see with the broader criminal legal system, because we see like what you’re talking about. For instance, payday loans are major for folks who are trying to put money on their loved one’s commissaries who are incarcerated or to meet the expenses of the collect calls and sending emails and sending mail, which now all have costs associated with them in most places. And so now, even though folks are home, there are still many costs associated with this. So as we pointed out, the families are really the ones experiencing many of these repercussions right alongside the person who is on community confinement.

Siers-Poisson [00:19:18] So given that there is a lot of money to be made by sentencing people to harsh forms of community confinement and supervision, and that it works in conjunction, as we discussed earlier, with the racism and classism that are ingrained in our society. Do you have any hope for meaningful, positive reforms of the system, and what would that look like?

Battle [00:19:38] Yeah. So again, I am an organizer and I’m an abolitionist, right? So I believe that there is not actually a way to reform this system into not having the violence, not having the white supremacy or white supremacist origins. Right. All of those things are fundamentally a part of the system. But those of us who practice and believe in the promise of abolition do look to ways to lessen the harms that are currently happening as we work towards total abolition of the system. So one thing that’s super important is that we have to actually be committed to working to decarceration and not just moving to forms of confinement and surveillance that are not actually alternatives, right? They’re actually things that just extend the criminal punishment system’s reach. So in many cases, folks who are on probation would not otherwise be incarcerated. Right. Their quote unquote, crimes were not serious enough for them to be incarcerated in the first place. So this is actually a way to extend the system’s reach. So we have to recognize that and be committed to working to end that extension. We also have to be serious about responding to the collateral consequences of the mark of a conviction. Right. So just because someone is not incarcerated doesn’t mean that they don’t still face the burdens associated with being convicted of a crime. Right. That can be inability to access higher education, inability to access low-income housing or other types of benefits. So we have to be serious about thinking about how to address those consequences. And then for me and those of us who are really committed to ending this criminal punishment system, we have to focus on the things that actually prevent the conditions that lead to illegal activity in the first place. We have to be serious about housing people in decent housing, right? Not just like in shelter housing. We all have a right to be living in a safe house situation where we can thrive. We have to be serious about job creation, folks having meaningful work that’s fulfilling to them, folks being able to access education and folks being able to access health care, right, including treatment for substance use for those who are interested in getting that type of treatment. Responding to issues with mental health provision, we have to be thinking about providing child care for people. So all of these things that lead to circumstances where people have to make really impossible decisions about how to support themselves or support them, their families, we have to focus on those things and focus less on punishment and how to make sure people are paying the price for their crimes.

Siers-Poisson [00:22:33] Well, thank you so much for sharing your insights on this. It’s a really big topic and you really helped us to break it down and understand it much better.

Battle [00:22:40] Thanks so much for having me.

Siers-Poisson [00:22:43] Thanks so much to Dr. Brittany Battle, assistant professor of sociology at Wake Forest University and an emerging poverty scholar. She joined us to discuss her research on the impact of community confinement on individuals, their families and communities. The production of this podcast was supported in part by funding from the U.S. Department of Health and Human Services Office of the Assistant Secretary for Planning and Evaluation. But its contents don’t necessarily represent the opinions or policies of that office of any other agency of the federal government or of the Institute for Research on Poverty. Music for the episode is by Zoidberg Pondering. Thanks for listening.